Sunshine Squad

sunshinesquad

The Sunshine Squad

“. . . Sunlight is said to be the best of disinfectants. . .”
                                                                                          – U.S. Supreme Court Justice Louis Brandeis, 1913

Working on behalf of oil and gas companies, Governor Jindal and his allies in the legislature have been systematically misleading the people of Louisiana.

While lecturing their colleagues about fairness, they’re promoting a set of bills that would give oil and gas companies a multi-billion dollar bailout from their own agreements to restore the coast.

While talking about legality, they’re trying to give a powerful special interest group immunity from state laws – retroactively.

It’s as though Governor Jindal and his allies think a cloak of darkness covers the Capitol, and no one can see what they’re doing there…But it’s time to let some sunshine into those halls.

The Sunshine Squad website will expose the deceptions that Governor Jindal and other allies of the oil and gas industry have been spreading in the Capitol and in the news media. It will do so on a real time basis, so that journalists, legislators, stakeholders and the people of Louisiana can spot these deceptions as they occur, then check them against the truth. For the rest of this session, every time someone in the legislature makes a misleading statement about the set of bills concerning the flood protection authority, an email will go to interested parties, and that false statement, as well as the truth, will appear in the space below:

Date:
Forum (Comm Testimony, Press Article, House or Senate Floor)
Who Said It
What They Said
What’s The Truth   
5/29/14 House Floor Vote Rep. Joel Robideaux SB 469 does not affect parish lawsuits against oil and gas companies (paraphrased). SB 469 currently says ONLY “an appropriate district attorney” or “a local government with an approved program” can bring such an action…Which raises two questions:

1.) What exactly is “an appropriate district attorney”? When asked that question in the legislature, Jimmy Faircloth, the architect of SB469, could not give a clear answer.

2.) Do all coastal parishes have an “approved program”? No! Only 10 of 21 coastal parishes have an “approved program.”


That leaves 11 coastal parishes out in the cold:

-Vermilion
-Iberia
-St. John the Baptist
-St. Mary
-St. Martin
-Tangipahoa
-Assumption
-St. James
-Livingston
-St. Charles
-Ascension

5/29/14 House Floor Vote Rep. Joel Robideaux SLFPA-E is a state agency (paraphrased). SLFPA-E is NOT a state agency. It’s a political subdivision – a levee board with the power to sue and be sued and retain special counsel subject to Attorney General approval. Article VI of the Louisiana Constitution dealing with local government establishes the SLFPA-E.  SLFPA-E is established as a levee district per La. R.S. § 38:330.1(A)(1).  “Levee district” means a political subdivision of this state organized for the purpose and charged with the duty of constructing and maintaining levees, and all other things incidental thereto within its territorial limits. La. R.S. § 38:281(6).  Levee districts are political corporations with the powers inherent in corporations, including to “sue and be sued.” La. R.S. § 38:309.

In over 100 years of Louisiana law, this type of entity has been treated as a political subdivision, and political subdivisions have the power to retain special counsel.

See Act No. 59 of 1886; Act No. 93 of 1890; State v. Tensas Delta Land Co., Ltd., 126 La. 59 (La. 1910); Bd. of Com’rs of Orleans Levee Dist. v. Blythe, 113 So. 150 (La. 1927); Board of Com’rs of Tensas Basin Levee Dist. v. Hardtner, 164 La. 632, 651 (La. 1927); Bd. of Com’rs of Orleans Levee Dist. v. Whitney Trust & Sav. Bank, 129 So. 658, 660 (1930) Saint v. Allen, 134 So. 246, 249 (La. 1931); State ex rel. Jones v. Doucet, 203 La. 743, 749 (La. 1943); Bd. of Comm’rs of Buras Levee Dist. v. Perez, 12 So. 2d 670, 674 (La. 1943)); Also: La. R.S. 38:330.6; La. R.S. 42:263.

5/29/14 House Floor Vote Rep. Gordon Dove SLFPA-E does not have the authority to engage in coastal restoration projects (paraphrased). The law expressly states that every levee board may “establish on its own behalf or for the areas or the levee districts under its authority adequate drainage, flood control, and water resources development, including but not limited to the planning, maintenance, operation, and construction of reservoirs, diversion canals, gravity and pump drainage systems, erosion control measures, marsh management, coastal restoration, and other flood control works as such activities, facilities, and improvements relate to tidewater flooding, hurricane protection, and saltwater intrusion” (La. Rev. Stat. § 38:330.2, emphasis added).
5/21/14 House Dept. of Natural Resources Committee Hearing Sen. Allain Coastal restoration and protection in Louisiana is the responsibility of the parishes and the state, not SLFPA-E (paraphrased). The CPRA is not the only entity that can perform non-federally funded coastal restoration projects, as Representative Allain suggests. If that were the case, numerous private landowners and local bodies would be breaking the law all the time. In fact, the law expressly states that every levee board may “establish on its own behalf or for the areas or the levee districts under its authority adequate drainage, flood control, and water resources development, including but not limited to the planning, maintenance, operation, and construction of reservoirs, diversion canals, gravity and pump drainage systems, erosion control measures, marsh management, coastal restoration, and other flood control works as such activities, facilities, and improvements relate to tidewater flooding, hurricane protection, and saltwater intrusion.” (La. Rev. Stat. § 38:330.2, emphasis added)
5/21/14 House Dept. of Natural Resources Committee Hearing Atty. Jimmy Faircloth, who helped to write SB 469 The SLFPA-E is “ungoverned” in how it could use any money it obtained from its lawsuit against oil and gas (paraphrased). The law is clear – the SLFPA-E must use money recovered consistent with its narrowly focused mission. The governing statute states:  “Each board may, in addition to any other powers and duties provided by law for the boards of commissioners of levee districts, establish on its own behalf or for the areas or the levee districts under its authority adequate drainage, flood control, and water resources development, including but not limited to the planning, maintenance, operation, and construction of reservoirs, diversion canals, gravity and pump drainage systems, erosion control measures, marsh management, coastal restoration, and other flood control works as such activities, facilities, and improvements relate to tidewater flooding, hurricane protection, and saltwater intrusion.” La. R.S. 38:330.2(A)(2)(a).SLFPA-E’s board members have a fiduciary duty to SLFPA-E just like any other corporate or public board. That means they have to be faithful to the mission. La. R.S. 38:330.1 provides for removal of a board member due to breach of fiduciary duty.The CPRA’s authority specifically carves out flood protection authorities’ power to fund and manage local activities dealing with coastal protection.  The governing statute on that point states:  “[CPRA’s] comprehensive integrated coastal protection must proceed in a manner that recognizes the powers and duties of political subdivisions, including flood protection authorities, and levee districts, to fund and manage local activities that are consistent with the goals of a comprehensive integrated coastal protection plan.” La. R.S. § 49:214.1(C).
5/21/14 House Dept. of Natural Resources Committee Hearing Atty. Jimmy Faircloth, who helped to write SB 469 SLFPA-E doesn’t have the authority to bring claims in the coastal zone (paraphrased). The SLFPA-E laws expressly give the SLFPA-E the right to sue and be sued – as well as to hire outside counsel. That has been confirmed by the state AG and Judge Janice Clark in a recent district court decision.
5/21/14 House Dept. of Natural Resources Committee Hearing Sen. Allain The SLFPA-E suit would take money away from coastal restoration (paraphrased). The SLFPA-E suit doesn’t take any money from coastal management. Just the opposite: the SLFPA-E suit seeks to make oil and gas companies pay for the damage they’ve done to the coast, which could bring in more money to address coastal restoration.
5/21/14 House Dept. of Natural Resources Committee Hearing Rep. Joe Harrison The SLFPA-E lawsuit did not go through contractual review (paraphrased). Last November, Louisiana Attorney General Buddy Caldwell wrote to Senator Robert Adley that “When SLFPA decided to sue 97 separate oil and gas companies, they abided by the law.”  The Louisiana Oil and Gas Association (LOGA) then brought suit alleging the SLFPA-E lawsuit wasn’t legal.  A Judge ruled against LOGA and further found the LOGA suit was frivolous. Both Governor Jindal and Senator Allain know about this court ruling.  What they really want is to grant retroactive immunity to a powerful special interest because the facts and science are not on its side.
5/21/14 House Dept. of Natural Resources Committee Hearing Dept. of Natural Resources (DNR) Rep. Blake Canfield The DNR has enforced the law, and has not had cases before it in which oil and gas companies broke the law (paraphrased). In 2011, the Inspector General of the Environmental Protection Agency reported that Louisiana’s record of compliance with federal environmental laws was among the worst in the nation – in part because of “a culture in which the state agency is expected to protect industry.”In 1990, the U.S. Environmental Protection Agency (EPA) Inspector General concluded, “Louisiana’s highly productive coastal wetlands are being lost due to inadequate regulation of oil and gas activities.”
5/7/14 Senate Floor Debate Sen. Allain “As I’ve researched this along, we discovered not only does this cause of action that was being brought by the levee board affected (sic) all of the oil companies they were suing, but they very much cleared a path, this course of action would have cleared a path to not only sue them, but also the landowners.” The SLFPA-E lawsuit does not make any attempt whatsoever to sue landowners. It is directed at 90+ oil, gas, and pipeline companies, as has been widely discussed and published, and as Senator Allain well knows.
5/7/14 Senate Floor Debate Sen. Allain “The lawyers can go the next day without permission and sue landowners. They don’t need permission. They can go the next day and sue timber harvesters, shell dredgers, boat captains, parishes of the state itself, and there is nothing the Flood Authority can do to prevent these other lawsuits from moving forward.” This could not be farther from the truth. On January 7, 2014, SLFPA-E’s lawyers send the board a letter agreeing that “we will not pursue entities…in any industry other than the oil, gas, and pipeline industries without the SLFPA-E’s prior approval.” This letter was presented to the CPRA at its January meeting.
5/7/14 Senate Floor Debate Sen. Allain “I believe – and I know this has been very much debated – that the flood authority failed to comply with the sunshine laws.” A Louisiana court has already ruled that the SLFPA-E lawsuit is legal. Last November, Louisiana Attorney General Buddy Caldwell wrote to Senator Robert Adley that “When SLFPA decided to sue 97 separate oil and gas companies, they abided by the law.”  The Louisiana Oil and Gas Association (LOGA) then brought suit alleging the SLFPA-E lawsuit wasn’t legal.  A Judge ruled against LOGA and further described the LOGA suit as “frivolous.” Both Governor Jindal and Senator Robert Adley know that a court has ruled the SLFPA-E lawsuit is legal.  What they really want is to grant retroactive immunity to a powerful special interest because the facts and science are not on its side.
5/7/14 Senate Floor Debate Sen. Allain “Federal law, now on the books, states that the Mississippi River Gulf Outlet area is to be stored (sic) at a hundred percent federal cost.” The CPRA has claimed that the federal government should be responsible for 100 percent of the cost of reparations of damage done by the Mississippi River Gulf Outlet Canal (MRGO). But that does not preclude other projects, funded by other sources, from taking place in the SLFPA-E jurisdiction. Furthermore, the CPRA’s claims specifically concern who will pay for a $3 billion restoration program. Meanwhile, the state’s Master Plan calls for almost $10 billion in projects just to protect the east bank of metro New Orleans alone. Even if the federal government eventually pays for all of the MRGO-related restoration projects, that will not come close to covering 100 percent of the coastal restoration costs necessary to protect the people and property in the SLFPA-E’s jurisdiction.
5/7/14 Senate Floor Debate Sen. Martiny and Sen. Allain Senator Martiny:”Was the right of the Southeast Levee Protection – the levee district – to seek compensation on those claims challenged in the courts?”
Senator Allain:”I don’t know.”
The SLFPA-E lawsuit was indeed challenged in court, when the Louisiana Oil and Gas Association brought a claim alleging the SLFPA-E suit wasn’t legal.  In February, a judge ruled against LOGA and further described the LOGA suit as “frivolous.” Senator Adley, who is co-sponsor of Senator Allain’s bill, knows that a court has already ruled the SLFPA-E lawsuit is legal. Senator Allain either knows that or should know it, since it is a fact that is crucial to the bill he is sponsoring.
 5/7/14  Senate Floor Debate Sen. Adley and Sen. Allain Senator Adley:”The SLFPA-E, the South Louisiana Flood Protection Authority – do you agree this is an agency of the State of Louisiana?”
Senator Allain:”It is.”
The SLFPA-E is not an agency of the state – it is a political subdivision, and it has the right to sue and be sued. Attorney General Buddy Caldwell and a district court judge have confirmed this fact. Sen. Adley knows all of this very well. In fact, Sen. Adley himself voted in 2006 to create SLFPA-E as a political subdivision that has the power to sue and be sued, and whose governing board has the authority to hire special legal counsel. So why does Sen. Adley keep repeating this misinformation?
5/7/14 Senate Floor Debate Sen. Adley “An agency of the state went and entered into a contract in violation of the law…” A Louisiana court has already ruled that the SLFPA-E lawsuit is legal. Last November, Attorney General Buddy Caldwell wrote to Senator Robert Adley that “When SLFPA decided to sue 97 separate oil and gas companies, they abided by the law.”  The Louisiana Oil and Gas Association then brought suit alleging the SLFPA-E lawsuit wasn’t legal.  A Judge ruled against LOGA and further described the LOGA suit as frivolous. Both Governor Jindal and Senator Robert Adley know that a court has ruled the SLFPA-E lawsuit is legal.  What they really want is to grant retroactive immunity to a powerful special interest because the facts and science are not on its side. The Southeast Louisiana Flood Protection Authority–East is not an agency of the state – it is a political subdivision, and it has the right to sue and be sued. Attorney General Buddy Caldwell and a district court judge have confirmed this fact. Sen. Adley knows all of this very well. In fact, Sen. Adley himself voted in 2006 to create SLFPA–E as a political subdivision that has the power to sue and be sued, and whose governing board has the authority to hire special legal counsel. So why does Sen. Adley keep repeating this misinformation?
5/7/14 Senate Floor Debate Sen. Adley [SLFPA-E aims to] sue people who did what they were told by the State of Louisiana… SLFPA-E’s case is based on well-established laws, some of which have been on the books for more than a century. During that time, state agencies have cited oil and gas companies thousands of times for violating those laws. A number of oil and gas company memos have surfaced in which they clearly acknowledged they were breaking the law. The memos have been widely reported.   They knew what the laws were, they broke them and now they just don’t want to have to suffer the consequences.  They also do not want to abide by contracts they signed with the state of Louisiana that require them to clean up after themselves.
4/15/14 Senate Floor Debate Sen. Robert Adley “This bill does not stop the lawsuit read the bill read it it does not stop the lawsuit. ” (2:47:00) All of Sen. Adley’s bills regarding SLFPA are attempts to stop the SLFPA-E lawsuit and take away the independence of SLFPA.  One even attempts to force retroactively the SLFPA-E to go to the Governor’s office for approval of its contract.  Governor Jindal has already stated his opposition to the lawsuit.
4/15/14 Senate Floor Debate Sen. Robert Adley “It was done illegally” (referring to the way the lawsuit was filed) (2:45:50) The Attorney General has said and a District Court Judge has ruled that the SLFPA-E lawsuit is legal.
4/15/14 Senate Floor Debate (answer to Sen. Appel question) Sen. Robert Adley “Then a lawsuit got filed to determine whether or not since the attorney general was declared in law to be their attorney when called upon to do so, whether or not the concept of a contingency fee arrangement would be available to them at all.  Once that was filed the attorney general backed off took no position whatsoever.  The discussion I had with him were it’s in the courts I’m not saying nothing.” Attorney General Buddy Caldwell said in a letter to Sen. Robert Adley on 11/26/13 that was also published online that “When SLFPA decided to sue 97 separate oil and gas companies, they abided by the law.”

 

Generally speaking, the deceptions of the oil and gas industry and its allies fall into one of the four categories below:

Industry Argument #1: This bill will not stop the SLFPA-E lawsuit – it just shines a light on the process by which the lawsuit was created.

Reality: Any of the bills concerning SLFPA will kill the lawsuit, by putting it in the hands of Governor Jindal, who has vowed to kill this lawsuit since the day it was filed.

Why: These are not sunshine bills. They are bills that strip power from local authorities and give it to Governor Jindal and every governor who follows him. These bills give governors the power to throw out legal contracts…to do away with independent levee boards…to replace any levee board members who don’t support his vague notions of “public policy”…and to deny local governments the right to go to court to protect their own coastal lands.

 

Industry Argument #2: The SLFPA-E lawsuit is illegal.

Reality: A Louisiana court has already ruled that the SLFPA-E lawsuit is legal.

Why: Last November, Attorney General Buddy Caldwell wrote to Senator Robert Adley that “When SLFPA decided to sue 97 separate oil and gas companies, they abided by the law.”  The Louisiana Oil and Gas Association then brought suit alleging the SLFPAE lawsuit wasn’t legal.  A Judge ruled against LOGA and further described the LOGA suit as frivolous. Both Governor Jindal and Senator Robert Adley know that a court has ruled the SLFPAE lawsuit is legal.  What they really want is to grant retroactive immunity to a powerful special interest because the facts and science are not on its side.

 

Industry Argument #3: Oil and gas companies followed the laws at the time, and now SLFPA-E is trying to prosecute them retroactively.

Reality: SLFPA-E’s case is based on well-established laws, some of which have been on the books for more than a century. During that time, state agencies have cited oil and gas companies thousands of times for violating those laws.

Why:  A number of oil and gas company memos have surfaced in which they clearly acknowledged they were breaking the law.  They knew what the laws were, they broke them and now they just don’t want to have to suffer the consequences.  They also do not want to abide by contracts they signed with the state of Louisiana that require them to clean up after themselves.

 

Industry Argument #4: The SLFPA-E lawsuit is not based on science.  It’s impossible to figure how much of Louisiana’s land loss is due to oil and gas activity.

Reality:  Scientists – including some from the oil and gas industry – have already attributed a percentage of Louisiana’s land loss to oil and gas activity.

Why:  Governor Jindal certainly knows about these scientific studies. He must know they would be powerful evidence in court. By keeping SLFPAE’s case out of the courts, he is in effect protecting the oil and gas industry from its own scientific research.